The Prohibition of Referral Fees

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1 The Prohibition of Referral Fees Purpose: Scope of application: Issued by: To draw barristers' attention to issues relating to payment for professional instructions All practising barristers The Ethics Committee Originally issued: October 2012 Last reviewed: June 2016 Status and effect: Please see the notice at end of this document. This is not guidance for the purposes of the BSB Handbook I6.4. General approach 1. There has been a proliferation in recent years of the payment of, or requests for payment of, referral fees in connection with the provision of legal services. In the Final Report of his Costs Review, 1 Jackson L.J. recommended that they should be prohibited in relation to personal injury cases. This recommendation has since been enacted, may yet be extended to other areas of work. 2. You are reminded that the payment by a barrister of a referral fee for the purpose of procuring professional instructions is forbidden under the BSB Handbook. The Bar Council endorses this approach, for the reasons set out in the Annex below. 3. You are also reminded that the payment (or receipt) of a referral fee (whether or not it is disclosed to the lay client) is potentially both a civil wrong and a criminal offence, whether or not it is also prohibited in connection with personal injury work by the Legal Aid, Sentencing and Punishment of Offenders Act The BSB Handbook rc10 prohibits both the payment and receipt of referral fees. The term "referral fee" is defined (definition (190)) as follows: "any payment or other consideration made in return for the referral of professional instructions by an intermediary" 1 Civil Litigation Costs Review: Final Report by Lord Justice Jackson (21 December 2009). 1

2 5. The definition goes on to clarify that a payment is not a referral fee if it is a payment either (1) for the provision of a particular service, or (2) for some other reason, and not for the provision or referral of professional instructions. 6. Definition (115) defines "intermediary" for this purpose as any person by whom a self-employed barrister or authorised body is instructed on behalf of a client; and in the context of referral fees, "intermediary" includes a professional client (as defined in definition (165)). 7. It would thus be a breach of the BSB Handbook for you: (a) (b) (c) to make or receive any payment or other consideration, to or from any intermediary (as defined), in return for the referral of professional instructions. 8. At the BSB Handbook gc29 to gc31 is also relevant. This provides as follows: "gc29 Making or receiving payments in order to procure or reward the referral to you by an intermediary of professional instructions is inconsistent with your obligations under CD2 and/or CD3 and/or CD4 and may also breach CD5. gc30 Moreover:.1 where public funding is in place, the Legal Aid Agency's Unified Contract Standard Terms explicitly prohibit contract-holders from making or receiving any payment (or any other benefit) for the referral or introduction of a client, whether or not the lay client knows of, and consents to, the payment;.2 whether in a private or publicly funded case, a referral fee to which the client has not consented may constitute a bribe and therefore a criminal offence under the Bribery Act 2010;.3 referral fees and inducements (as defined in the Criminal Justice and Courts Act 2015) are prohibited where they relate to a claim or potential claim for damages for personal injury or death or arise out of circumstances involving personal injury or death...: section 56 Legal Aid, Sentencing and Punishment of Offenders Act 2012 and section 58 Criminal Justice and Courts Act gc31 Rule rc10 does not prohibit proper expenses that are not a reward for referring work, such as genuine and reasonable payments for:.1 clerking and administrative services (including where these are outsourced);.2 membership subscriptions to ADR bodies that appoint or recommend a person to provide mediation, arbitration or adjudication services; or 2

3 .3 advertising and publicity, which are payable whether or not any work is referred. However, the fact that a fee varies with the amount of work received does not necessarily mean that it is a referral fee, if it is genuinely for a marketing service from someone who is not directing work to one provider rather than another, depending on who pays more." 9. Rules rc8 and rc9, and gc18-gc21 and gc25, also explain how Core Duties 3, 4 and 5 may be engaged: (a) rc8 provides as follows: "You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4)." (b) rc9 provides as follows: "Your duty to act with honesty and integrity under CD3 includes the following requirements:....7 you must only propose, or accept, fee arrangements which are legal." (c) The guidance provides as follows: "Examples of how you may be seen as compromising your independence gc18 The following may reasonably be seen as compromising your independence in breach of Rule [C8] (whether or not the circumstances are such that Rule C10 is also breached):.1 offering, promising or giving:.a any commission or referral fee (of whatever size) note that these are in any case prohibited by Rule C10 and associated guidance; or.b a gift (apart from items of modest value), to any client, professional client or other intermediary; or.2 lending money to any such client, professional client or other intermediary; or.3 accepting any money (whether as a loan or otherwise) from any client, professional client or other intermediary, unless it is a payment for your professional services or reimbursement of expenses or of disbursements made on behalf of the client. gc19 If you are offered a gift by a current, prospective or former client, professional client or other intermediary, you should consider carefully 3

4 whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised. If this would be the case, you should refuse to accept the gift. gc20 gc21 The giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and so should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised. Guidance gc18 to gc20 above is likely to be more relevant where you are a self-employed barrister, a BSB authorised body, an authorised (non- BSB individual, and employed barrister (BSB authorised body) or a BSB regulated manager. If you are a BSB authorised individual who is an employee or manager of an authorised (non-bsb) body or you are an employed barrister (non-authorised body) and your approved regulator or employer (as appropriate) permits the payments to which Rule C10 applies, you may make or receive such payments only in your capacity as such and as permitted by the rules of your approved regulator or employer (as appropriate). For further information on referral fees, see the guidance at [gc32]." Other possible breaches of CD3 and/or CD5 gc25 A breach of Rule C9 may also constitute a breach of CD3 and/or CD5. Other conduct which is likely to be treated as a breach of CD3 and/or CD5 includes (but is not limited to):.1... breaches of Rule C8;.2 breaches of Rule C See also the BSB s Guidance on referral and marketing arrangements for barristers permitted by the BSB. 11. The Bar Council also takes the following views: The position of clerks and other staff (a) In the light of CD10, oc24, rc89 and rc90, you will be responsible for the conduct of your staff, and must take steps to ensure that members of your staff are not paying commissions or giving other consideration on their own account in respect of professional instructions for members of chambers. Publicly Funded Cases (b) Where public funding is in place, the Legal Aid Agency s Contract Standard Terms explicitly prohibit contract-holders from making or receiving any 4

5 payment (or any other benefit) for the referral or introduction of a client, whether or not the lay client knows of, and consents to, the payment. 2 (c) (d) In relation to criminal cases specifically, the Bar Council takes the view that the payment or acceptance of a referral fee is also contrary to the Criminal Legal Aid (Remuneration) Regulations The Bar Council takes the view that the acceptance of an improperly low proportion of the fee paid under the Advocates Graduated Fee Scheme where the solicitor is the instructed advocate in a case amounts to the payment of a referral fee by a barrister, and is thus prohibited. 4 In the same way, following the change in the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2015, where the barrister is the trial advocate, a disproportionately high fee paid by the barrister to a solicitor designated as substitute advocate, also amounts to a payment of a referral fee and is thus prohibited. 5 2 LAA Crime Contract 2010 Standard Terms, paragraphs 6.8 and 6.9. LAA Own client Crime Contract 2015 draft Standard Terms, paragraphs 6.8 and 6.9. LAA Civil Contract 2014 Standard Terms paragraphs 6.8 and Paragraphs 9, and Schedule 1 paragraph The practice has developed among some solicitors of using the one-case one-fee rules in para. 26, Pt. 5, Sch. 1 to the Criminal Legal Aid (Remuneration) Regulations 2013to the solicitors own financial advantage. Under those rules, all fees in the case are paid by the Legal Aid Agency to the Instructed Advocate for him to distribute to other advocates who also appear to represent the defendant. The Instructed Advocate is supposed to be the advocate with primary responsibility for the case (see the definition of instructed advocate in para.1(1), Sch. 1 to the Order). But some solicitors with higher court rights of audience seek to take improper advantage of the deeming provision (in para. 25(2) of Sch. 1 of the Order) which deems the advocate who attends the PCMH to be the instructed advocate. They appear at the PCMH in order to be deemed to be the instructed advocate and thereby to gain control over the distribution of the advocacy fee for the case, but with no intention of conducting the trial. Instead, they exploit their position as fund-holder to retain as much of the fee as possible, seeking to negotiate down the payments made to any advocate (typically counsel) from outside their firm who appears at the trial. The Bar Council considers this an abuse of the system and one that will, usually, involve a breach of Para. 25(10), Sch. 1 of the Order and section IV.41.8 of the Consolidated Criminal Practice Direction (2007). In such a scenario, neither the client nor the LAA as the paymaster benefits from the payment of a lower fee for advocacy in this way; the only effect is to inflate the solicitor s profit margin. This cannot be in the public interest. 5 On 5 May 2015 the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2015 came into force whereby claims for fees by advocates must be made by and paid to the trial advocate who is the advocate who attends the main hearing and, in relation to trials, the advocate who attends on the first day. The trial advocate is then responsible for paying substitute advocates who work on the case. The Bar Council produces a Graduated Fee Payment Protocol to help barristers to calculate the level of fee that should be paid to a substitute advocate. The fees in the Protocol are based on the regulations. For example, under Schedule 1 paragraph 24 of the Criminal Legal Aid (Remuneration) Regulations 2013 Criminal Legal Aid (Remuneration) Regulations 2013 the fee for a Led Junior or Junior 5

6 Civil and Criminal Law (e) Where the lay client does not know of and consent to the payment of the referral fee: i. it constitutes a bribe, and is recoverable by the lay client from the solicitor or other intermediary or the advocate, and ii. the offer, promise or giving or the request, agreement to receive or acceptance of a referral fee may amount to a criminal offence under the Bribery Act 2010, and this applies to both private and publicly funded cases. (f) Even where you believe that the solicitor or other intermediary would/will tell or has told the lay client of the fee, you will be treated in civil law as a party to the solicitor s or other intermediary s breach of duty if the client is not told about the payment by the solicitor or other intermediary, and does not give consent to it. Provision of the services of Junior Barristers at Discounted Fee Rates 12. As already explained, disguised commission payments are prohibited as much as apparent commission payments. 13. In this context, the Bar Council takes the view that the provision of junior barristers for a fee clearly below the market rate, or below that prescribed by regulation or subject to an applicable protocol, is capable of amounting to a disguised commission payment. 14. This may be for one or more of the reasons already outlined above. 15. In addition, however, the Bar Council takes the view that the provision of junior barristers at discounted fees of this sort (or even for no fee at all) in return for securing instructions for other members of chambers, particularly more senior members, is also prohibited. Not only does this involve a disguised referral fee, but it also involves a serious abuse of the most vulnerable in the profession. Advice 16. If you are uncertain whether a particular arrangement is consistent with the BSB Handbook, you are encouraged to seek advice by contacting the Ethical Enquiries Service (Ethics@BarCouncil.org.uk, or ). Alone for a standard appearance is 87. Therefore if a solicitor advocate from the instructing solicitor firm has undertaken a standard appearance, that is the fee that the trial advocate should pay out of the fee for the case. A payment in excess of that or a percentage share of the fee arrangement is likely to amount to a referral fee. 6

7 Important Notice This document has been prepared by the Bar Council to assist barristers on matters of professional conduct and ethics. It is not guidance for the purposes of the Bar Standards Board Handbook I6.4, and neither the Bar Standards Board nor a disciplinary tribunal nor the Legal Ombudsman is bound by any views or advice expressed in it. It does not comprise and cannot be relied on as giving legal advice. It has been prepared in good faith, but neither the Bar Council nor any of the individuals responsible for or involved in its preparation accept any responsibility or liability for anything done in reliance on it. For fuller information as to the status and effect of this document, please refer to the professional practice and ethics section of the Bar Council s website here. 7

8 Annex: Explanatory Note 1. The Bar Council is firmly of the view that referral fees in the legal market, and in the provision of advocacy services in particular, operate against the public interest. 2. The Bar Council views referral fees as: (1) threatening the quality of the service the lay client receives, since: (a) (b) willingness and ability to pay a referral fee may have more influence upon the choice of advocate than the ability of the advocate in question, and advocates are no longer forced to rely upon the quality of their advocacy to attract work; (2) limiting client choice, by reducing the pool of advocates from which the solicitor will make a selection; and (3) compromising the independence of the advocate. 3. The Bar Council agrees with the views expressed by Jackson L.J. in Civil Litigation Costs Review: Final Report by Lord Justice Jackson (21 December 2009): (1) Jackson L.J. highlighted the negative effects of non-advocacy referral fees upon personal injury cases and came to the conclusion that they should be prohibited. He found that referral fees in personal injury cases, add to the costs of litigation, without adding any real value to it. (2) Jackson L.J. found that referral fees there were of no benefit to the lay client: the effect of referral fees can only be to drive up legal costs (since the referee must recoup its outlay) and/or to depress quality of service. (3) The fact that referral fees were paid as a matter of routine was found to be one of the factors that contributed to the high costs of personal injuries litigation. The lifting of the ban on referral fees in 2004 by solicitors had not proved to be of benefit either to claimants or to the providers of legal services: The only winners are the recipients of referral fees. 4. The very high standards which the Bar sets and maintains are given regulatory force in Core Duties 2, 3, 4 and 5, and by the specific obligations on barristers in rc15 :.1 you must promote fearlessly and by all proper and lawful means the client s best interests;.2 you must do so without regard to your own interests or to any consequences to you... 8

9 .3 you must do so without regard to the consequences to any other person (whether to your professional client, employer or any other person). 5. Members of the Bar also compete in an open market with other members of the profession who practise in the same field and are of similar experience. The strength of a barrister s reputation for providing a high-quality service for his client is the main reason why a barrister attracts instructions. This need to compete creates the climate at the Bar which has consistently produced the highest standards in both advocacy and legal representation throughout the profession. 6. The payment of referral fees undermines those standards and the public s confidence that the profession is maintaining them. It risks corrupting the Bar s integrity, the service provided to lay clients (who are often from the most vulnerable sectors in society) and the professional relationship between the solicitor and the advocate. 7. The payment of referral fees within the legal market is also having a damaging effect upon the viability of practice for younger members of the Bar, particularly where representation is publicly funded. In the long run this can only damage the whole of the Bar. 8. Since the Access to Justice Act 1999, there has been a steady increase in the number of solicitors practising advocacy, whether as solicitor advocates or higher court advocates ( HCAs ), particularly in family and in criminal law. The payment of referral fees between solicitors firms and freelance HCAs is now commonplace, particularly in criminal practice, where cross-referrals between solicitors happen regularly. 9. Economic pressure upon publicly funded solicitors practices, and particularly criminal practices, will continue to intensify as a result of the further reduction of litigator legal aid fees. 10. These pressures will increase the drive towards the request for referral fees. Thus solicitors will be incentivized to brief advocates based on economic criteria rather than on which advocate would provide the best representation for the lay client. The Bar Council is aware of the increasing pressure being put upon members of the Bar by certain solicitors to enter into referral fee agreements. 11. The payment between solicitors of referral fees and the consequent increased use of solicitor advocates has diverted work away from young practitioners at the family and criminal Bars. As a result, young barristers are losing valuable experience at an important stage in their career, are suffering financial hardship and, in crime, are finding difficulty in establishing a crown court practice. This has affected not only those barristers who are currently at the Bar, but is likely to discourage the brightest and best applicants from coming to the Bar. 12. Pupils typically begin their career at the Bar many thousands of pounds in debt. An effect of referral fees is ultimately likely to be to dissuade those from less privileged backgrounds from a career at the Bar. The junior Bar will not only see the quality of its new members diminish, but also its diversity. In time, this will have a detrimental effect upon the quality and diversity of the senior Bar and the judiciary. 9

10 13. Accordingly, for the reasons set out above, the Bar Council takes the view that referral fees have a negative rather than a positive impact for clients, and operate against the public interest. They threaten to compromise the integrity of those who receive them. At best they limit the client s choice of advocate: at worst, they can result in the lay client receiving a substandard service. 10